Posts from February, 2012

CIA and Special Ops are “Deconflicted at All Levels”

“I will tell you the relationship between CIA and Special Operations Forces is as good as I have ever seen it,” said Adm. William H. McRaven, Commander of Special Operations Command, in congressional testimony last year. “Both under [CIA] Director Panetta, and now, of course, under Director Petraeus, I think we are going to see that relationship continue to strengthen and blossom.”

The conduct of DoD special operations, including coordination between DoD clandestine operations and CIA covert operations, was the subject of an informative hearing held by the House Armed Services Committee in September.  The record of that hearing has just been published.

“USSOCOM [U.S. Special Operations Command] and the CIA currently coordinate, share, exchange liaison officers and operate side by side in the conduct of DOD overt and clandestine operations and CIA’s covert operations, said Michael D. Lumpkin, acting assistant secretary of defense.

“Our activities are mutually supportive based on each organization’s strengths and weaknesses and overall capabilities. Whichever organization has primary authority to conduct the operation leads; whichever organization has the superior planning and expertise plans it; both organizations share information about intelligence, plans, and ongoing operations fully and completely. Whether one or both organizations participate in the execution depends on the scope of the plan and the effect that needs to be achieved. Currently all USSOCOM and CIA operations are coordinated and deconflicted at all levels.”

“USSOCOM reports all of its clandestine activities quarterly through DOD to Congress for appropriate oversight,” Mr. Lumpkin said.

See “The Future of U.S. Special Operations Forces: Ten Years After 9/11 and Twenty-Five Years After Goldwater-Nichols,” hearing before a subcommittee of the House Armed Services Committee, September 22, 2011.

And see, relatedly, “Budget Requests from the U.S. Central Command and U.S. Special Operations Command,” hearing before the House Armed Services Committee, March 3, 2011.

Nonstrategic Nuclear Weapons, and More from CRS

New and updated reports from the Congressional Research Service that Congress has declined to make readily available to the public include the following.

Extraterritorial Application of American Criminal Law, February 15, 2012

Civilian Extraterritorial Jurisdiction Act: Federal Contractor Criminal Liability Overseas, February 15, 2012

Nonstrategic Nuclear Weapons, February 14, 2012

The U.S. Export Control System and the President’s Reform Initiative, February 16, 2012

NATO Common Funds Burdensharing: Background and Current Issues, February 15, 2012

The Federal Budget: Issues for FY2013 and Beyond, February 17, 2012

Reducing the Budget Deficit: Policy Issues, February 15, 2012

Burma’s Political Prisoners and U.S. Sanctions, February 13, 2012

Previewing the Next Farm Bill, February 15, 2012

Reporter’s Privilege at Issue in Sterling Leak Case

The question of whether a reporter is entitled to protect confidential sources has emerged as a central issue in the pending pre-trial appeal in prosecution of Jeffrey Sterling, the former CIA officer who is accused of leaking classified information to New York Times reporter James Risen.

“There is no ‘reporter’s privilege’ applicable to criminal prosecutions brought in good faith,” prosecutors told the appeals court last month.  “The First Amendment creates no ‘reporter’s privilege’ that would shield Risen from his obligation to testify at Sterling’s criminal trial and identify his source.”  (“Testimony of Reporter Sought in Sterling Leak Case,” Secrecy News, January 17).

That’s not true, countered Mr. Risen’s attorneys in a lengthy response filed yesterday, and the court should not rule otherwise.

“This Court should not depart from well-established precedent by being the first court of appeals ever to deny the existence of a reporter’s privilege with respect to confidential source information in the criminal trial context…. Confidentiality is essential for journalists to sustain their relationships with sources and to obtain sensitive information from them. Without it, the press cannot effectively serve the public by keeping it informed.”

Mr. Risen’s attorneys proposed that the Court embrace a balancing test that recognizes both the benefits and risks of leaks.

“We respectfully submit that leak cases should also include a weighing of the competing interests as they manifest themselves in the case at hand — that is, by ‘weigh[ing] the public interest in compelling disclosure [of a source], measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information’s value’.”

“Put simply, incorporating this public interest analysis is the most direct way to protect journalism based on leaks that cause more good than harm. It also provides a basis to force the privilege to yield for leaks that cause more harm than good.”

“Applying this approach to the facts of this case, it is clear that the newsworthiness of the information contained in Chapter 9 of [Mr. Risen's book] State of War outweighs any alleged harm that was caused by its publication,” Mr. Risen’s attorneys wrote.

A response to the government’s appeal was also filed yesterday by Mr. Sterling, but it has not yet been publicly released.  See Politico for related coverage.

The case has been tentatively scheduled for oral argument during the May 15-18 session of the Fourth Circuit Court of Appeals.

Pentagon Basic Research Said to Need “More Transparency”

The Department of Defense basic research program has many strengths as well as some serious weaknesses, according to a new report (large pdf) from the Defense Science Board (DSB), but it needs to open up and to improve its information management practices.

“As is true for most programs in the DoD,… less bureaucracy and more transparency would be welcome improvements,” the DSB study said.

Current DoD information practices are not even responsive to internal agency needs, let alone requests from outsiders, the DSB found.

“A significant handicap for conducting the [DSB] study was the difficulty of getting data on the DOD basic research program.  What should have been easily retrievable data required huge time-consuming, labor-intensive efforts to collect and assemble due to the lack of a modern management information system that would enable answering questions posed by DOD leadership.”

“It is difficult to have management without management information,” the DSB report said.  See Report of the DSB Task Force on Basic Research, January 2012.

FY2012 Defense Appropriations, and More from CRS

New and updated reports from the Congressional Research Service that Congress has not made publicly available include these.

Defense: FY2012 Budget Request, Authorization and Appropriations, February 13, 2012

Guam: U.S. Defense Deployments, February 13, 2012

Conventional Prompt Global Strike and Long-Range Ballistic Missiles: Background and Issues, February 13, 2012

Keeping America’s Pipelines Safe and Secure: Key Issues for Congress, February 13, 2012

Discretionary Budget Authority by Subfunction: An Overview, February 14, 2012

Federal Employees’ Retirement System: Benefits and Financing, February 14, 2012

The Role of Local Food Systems in U.S. Farm Policy, January 24, 2012

Pentagon Discloses Military Intelligence Budget Request

From a secrecy policy point of view, the Administration’s FY 2013 budget proposal that was released yesterday contained one surprise:  The Department of Defense disclosed the amount of its request for the Military Intelligence Program (MIP).  This is something that the Pentagon has never done before and indeed had refused to do.

“The Department of Defense released today the military intelligence program (MIP) requested top line budget for fiscal 2013,” the DoD said in a February 13 news release.  “The total request, which includes both the base budget and Overseas Contingency Operations appropriations, is $19.2 billion.”

This disclosure is noteworthy from several points of view, and not only because it represents a sizable drop from the recent peak MIP budget of $27 billion in FY2010.

Significantly, the Pentagon was not obliged or compelled to release this information.  In the FY2010 Intelligence Authorization Act (section 364), Congress mandated that the President “shall disclose to the public” the amount of the budget request for the National Intelligence Program (NIP).  And that NIP budget request — $52.6 billion for FY 2013 — was also disclosed yesterday by the Director of National Intelligence, for the second year in a row.

But Congress was silent on public disclosure of the MIP request, and DoD was under no legal obligation to release it.

Moreover, DoD had explicitly refused to divulge its MIP budget request as recently as two months ago.  In response to a FOIA request for release of last year’s MIP request, the Pentagon wrote on December 7, 2011 that the size of the MIP budget request “is currently and properly classified.”  (See “DoD Says Military Intel Budget Request is Classified,” Secrecy News, December 14, 2011.)

So what happened between then and now?  Something all too rare in the world of secrecy policy:  DoD classification officials reconsidered their position and changed their mind.  An impartial assessment of the matter evidently led to the conclusion that disclosure of the MIP budget request would not damage national security and therefore should not be classified.

The ongoing Fundamental Classification Guidance Review is an effort to systematically promote similar “impartial assessments” of all other aspects of national security classification.

The disclosure of the MIP budget request now goes on a short but weighty list of declassification “firsts” that have occurred in the Obama Administration, including routine publication of the NIP, MIP and aggregate intelligence budgets, disclosure of the size of the U.S. nuclear weapons stockpile, and a handful of other revelations.

Yesterday’s news release announcing the MIP total request stated that “No other MIP budget figures or program details will be released, as they remain classified for national security reasons.”  However, DoD budget materials that were released yesterday indicated that the new MIP budget request included $4.5 billion for Overseas Contingency Operations, a reduction from $5.8 billion in the current fiscal year.

US-China Military Contacts, and a Lot More from CRS

New and newly updated reports from the Congressional Research Service that Congress has not made readily available to the public include the following (all pdf).

U.S.-China Military Contacts: Issues for Congress, February 10, 2012

China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress, February 8, 2012

Military Base Closure: Socioeconomic Impacts, February 7, 2012

Intelligence Authorization Legislation: Status and Challenges, February 13, 2012

Trans-Pacific Partnership (TPP) Countries: Comparative Trade and Economic Analysis, February 8, 2012

Russian Political, Economic, and Security Issues and U.S. Interests, February 10, 2012

U.S. Sanctions on Burma, February 7, 2012

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, February 6, 2012

Navy Nuclear Aircraft Carrier (CVN) Homeporting at Mayport: Background and Issues for Congress, February 9, 2012

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, February 9, 2012

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, February 3, 2012

Iran Sanctions, February 10, 2012

Internet Governance and the Domain Name System: Issues for Congress, February 9, 2012

Federal Land Ownership: Overview and Data, February 8, 2012

Changes in the Arctic: Background and Issues for Congress, February 7, 2012

Agencies Told to Report on Decline in Secrecy

After all the speeches about greater openness have been delivered and the news releases about secrecy reform have been filed away, one may ask:  What has actually been accomplished?  How much improper secrecy has been eliminated?  Specific answers to such questions may soon be forthcoming.

The Information Security Oversight Office (ISOO), which is responsible for oversight of the national security classification system, wants agencies to answer those questions when they submit their final reports on the Fundamental Classification Guidance Review in June 2012.  The Fundamental Review was mandated by President Obama’s 2009 executive order 13526 (section 1.9) in order to identify and cancel classification requirements that were obsolete or unnecessary. The Review process is the Obama Administration’s primary response to the widely acknowledged problem of overclassification.

In a memorandum to senior agency officials last month, ISOO Director John P. Fitzpatrick instructed them on how to report the results of each agency’s Fundamental Review, and asked them to explain what practical difference the Review made.

“To the greatest extent possible, the reports should be informative as to how much information that was classified is no longer classified as a result of the review,” Mr. Fitzpatrick wrote.  “The report should also provide the best estimate of how much information that would normally have been classified in the future will now not become classified,” he continued.

The message here is that the Fundamental Review was not supposed to be some merely perfunctory exercise, but was intended to advance a specific policy objective, namely a reduction in the scope of secrecy.

It may succeed, to one degree or another, or it may fail.  In either case, Mr. Fitzpatrick’s reporting requirements should generate useful clarity about the outcome.  See “Reporting Results of Fundamental Classification Guidance Reviews to ISOO,” memorandum to selected senior agency officials, January 23, 2012.

In a January 31 interim status report on the Fundamental Review, the Department of Homeland Security said it had eliminated 2 classification guides out of 22 guides that had been reviewed to date.  The Nuclear Regulatory Commission said it had also retired two guides.

DoD Envisions “Routine” UAS Access to US Airspace

The Department of Defense currently seeks expanded access to U.S. airspace for its unmanned aerial systems (UASs), and it anticipates the routine use of military UAS in the National Airspace System (NAS) as a long-term goal, according to a 25 year roadmap for UAS development.

“The number of UAS in the DoD inventory is growing rapidly.  The increase in numbers, as well as the expanding roles of UAS, has created a strong demand for access to national and international airspace and has quickly exceeded the current airspace available for military operations,” according to DoD’s Unmanned Systems Integrated Roadmap, FY2011-2036, dated October 2011.

“The [desired] end state is routine NAS access comparable to manned aircraft for all DoD UAS,” the DoD Roadmap said.  “DoD’s immediate focus is gaining near-term mission-critical access while simultaneously working toward far-term routine NAS access.”

“Current UAS are built to different specifications for different purposes; therefore, showing individually that each system is safe for flight in the NAS can be complicated, time consuming, and costly,” the Roadmap stated.  “Routine access cannot happen until DoD and FAA agree to an acceptable level of safety for UAS, and the appropriate standards are developed to meet that threshold.”

Under current procedures, the Federal Aviation Administration permits a small number of DoD UAS flights outside of restricted military areas.  But the present FAA certification process “does not provide the level of airspace access necessary to accomplish the wide range of DoD UAS missions at current and projected operational tempos.  This constraint will only be exacerbated as combat operations in Southwest Asia wind down and systems are returned to U.S. locations.”

In the newly enacted FAA authorization act and the 2012 National Defense Authorization Act, Congress mandated “accelerated” integration of UASs into U.S. airspace.  (“Congress Calls for Accelerated Use of Drones in U.S.,” Secrecy News, February 3;  “Drones Over U.S. Get OK by Congress” by Shaun Waterman, Washington Times, February 7;  “Among Liberties Advocates, Outrage Over Expanded Use of Drones” by Channing Joseph, New York Times The Lede, February 7.)

“Over the next 15 years more than 23,000 UAS jobs could be created in the U.S. as the result of UAS integration into the NAS,” according to a 2010 report by the Association for Unmanned Vehicle Systems International, a UAS industry advocacy group. “These new jobs will include positions in industry, academia, federal government agencies and the civilian/commercial UAS end-user community.”


CIA Adds Hurdles to Mandatory Review Requests

In recent years the Mandatory Declassification Review (MDR) process has become an increasingly useful alternative to the Freedom of Information Act by which members of the public can challenge the classification of government records.  Remarkably, agency classification positions have been overturned with some frequency in the MDR appeals process, which is something that almost never happens in FOIA litigation.

In a dubious act of recognition of the growing effectiveness of MDR, the Central Intelligence Agency has recently imposed substantial new fees that seem calculated to discourage its use by public requesters.

Last September the CIA issued new regulations specifying that declassification reviews would now cost up to $72 per hour even if no responsive records were found or released.  There is also a minimum fee of $15 for reproduction of any document, no matter how few pages it might consist of.

“Search fees are assessable even if we find no records, or, if we find any, we determine that we cannot release them,” the CIA wrote last month in response to an MDR request from the National Security Archive.  “Consequently, we will charge you even if our search results are negative or if we cannot release any information.  Accordingly, we will need your commitment to pay applicable fees before we can proceed.”

For background and a critique of the new CIA policy, see “The CIA’s Covert Operation Against Declassification Review” by Nate Jones in the Archive’s Unredacted blog, February 10.